Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 1:

1. LEEMING JA: I agree with N Adams J that the sentence imposed by the District Court was manifestly inadequate, that this Court should intervene on the bases of each of grounds 1 and 2, and with the sentence her Honour imposes.

2. Whether or not the respondent was at the "same level" of the "hierarchy" or "slightly above" or "slightly below" the level of his co-offender on one of the seven offences for which sentence was imposed is immaterial to the sentence imposed by this Court. Nothing turns on ground 1A, for which reason save for what follows I would prefer to express no view upon it. I otherwise agree with the reasons of N Adams J.

3. There was no argument in this Court concerning the circumstances when error may be found in a ground of appeal challenging a finding of fact, such as Ground 1A, and thus there is no occasion to revisit the conflict on this point between what was said in AB v R [2014] NSWCCA 339 at [44]-[61], disapproving what had been said in Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19 and Aoun v R [2011] NSWCCA 284, but which was reiterated (albeit without submissions on the point) in Clarke v R [2015] NSWCCA 232; 254 A Crim R 150 ("Clarke") and Hordern v R [2019] NSWCCA 138; 278 A Crim R 353 ("Hordern"), but thereafter again disapproved (again, without submissions on the point) in Azzopardi v R [2019] NSWCCA 306 at [34]-[40] and Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18; 278 A Crim R 564 at [125].

4. There will come a time when the point will be argued and determined. There would be much to be said in favour of sitting an enlarged bench when that occasion arises. That is because the question is a basal one, and there are respectable arguments available to both sides. And, despite the forcefulness with which some of the reasons have been expressed, there is a deal of common ground. So far as I can see, no one disputes that before this Court can intervene under s 5(1)(c) of the Criminal Appeal Act, there must first be "error". The issue is whether those errors are limited in the ways enunciated by Hunt J refusing leave to appeal in O'Donoghue v R (1988) 34 A Crim R 397 ("O'Donoghue"). That was an ex tempore decision of this Court which relied upon two earlier decisions where it had been said that it was not open to the appellate court to depart from a finding that a confession was voluntary (Merritt & Roso v R (1985) 19 A Crim R 360 and Kyriakou, D'Agosto & Lombardo v R (1987) 29 A Crim R 50). In both of those cases the issue was whether the primary judge erred in finding that a confession was given voluntarily where both the police officers and the accused had given evidence about it. O'Donoghue was significant because the reasoning treated the limitations applicable to appellate review where there had been testimonial evidence at first instance to all cases. It is not, to say the least, self-apparent that the same level of deference applies where the judge at first instance does not enjoy the advantage of seeing testimonial evidence.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1985d57a5ec8cdecbd70f5eb)

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